from the before-the-DMCA,-did-people-just-break-into-libraries-and-steal-microfiche? dept

Update: An Autharium representative reached out to the Passive Voice blog to admit that sending a DMCA takedown was a "mistake". It's not clear whether this means that it was done in error, or that they've acknowledged their attempted abuse of the system.

The DMCA notice: the multi-tool abused by many. The most common abusive form is the issuance of takedowns to muffle criticism, which is what we have here.

Autharium, a British ebook self-publishing platform, took a bit of a beating last March for its absolutely horrendous Terms and Conditions. Passive Voice, a writer-oriented blog, was the first to expose just how much authors were giving up when they signed with Autharium. In exchange for publishing through Autharium, authors gave the platform exclusive WORLDWIDE rights to "produce, publish, promote, market and sell your Work in any Digital Form" for "the entire legal term of copyright." That's life plus 70 years in the UK.

If an author somehow managed to talk Autharium into reverting the copyright back to him or her, Autharium still retained exclusive, worldwide digital distribution rights. And "any Digital Form" included far more than just ebooks. Paragraph 1.4 of the publishing T&C originally listed the following as being under Autharium's exclusive control.

“Digital Form” means any and all electronic and/or digital forms and media whether now known or later invented or developed including (by way of examples only): (i) any e-book (i.e. using any means of manufacture, distribution or transmission whether now known or later developed including but not limited to electronic and machine-readable media and online and satellite based transmission intended to make your Work available for reading) (“eBook”); and (ii) any electronic version (other than an eBook) for performance and display (whether sequentially or not) in any manner (together with accompanying sounds, images, interactive and/or search features if any) by any electronic means, method or device (“Electronic Version”).

Word quickly spread around the web to other author/ebook-oriented sites like Writer Beware and The Digital Reader. The consensus was that this contract was even more exploitative than those offered by other infamous self-publishing platforms/vanity presses like Author Solutions.

For avoidance of doubt this does not include physical or audio book forms, videos, film, television, merchandise or game forms.

As it noted on top of the "new" T&C page, this was overhauled in March of 2013, an effort which stripped away almost everything ridiculous and exploitative about the original. This massive restructuring allowed Autharium to add the following line to its "About" page, something it couldn't honestly have said at any point before the March 2013 revamp. (The wording isn't present in previous versions.)

No draconian length of copyright contracts, no signing away of movie, merchandising or physical book rights.

So far, so good. While it's a shame Autharium felt the original T&C was somehow acceptable, it did at least respond quickly to the criticism by making extensive changes. If only Autharium had left it at that.

While it could technically be argued that the "copyrighted text" was "taken" without permission, what was actually included in Passive Voice's post was five paragraphs out of 83 total. And it was clearly used as part of the commentary. It's very difficult to explain what's wrong with a contract's Terms & Conditions without quoting it directly, as was done here. Furthermore, there's nothing in the site's Terms & Conditions that forbids use of the site's text in this fashion.

This has every appearance of a company -- which originally did the right thing and fixed its horrendous contractual text -- attempting to whitewash the past, starting with the blog post that triggered the backlash. But why? Why do this when you've already addressed the problematic T&C and have started to win writers back?

In the opinion of many, including PG [Passive Guy, blogger at Passive Voice], the legal remedies for bad faith takedown notices that are simply attempts at censorship are inadequate. For a further discussion of this problem, see this post on the WordPress Blog.

PG thinks an alternate remedy – sunlight – might work the best in this case.

Here is PG’s original commentary on the Autharium language without the inclusion of any language from the Autharium terms of service. PG is including his commentary so his opinions about what he believed to be unfair contract terms as they existed on March 10, 2013, will show up on Google.

Fortunately, The Passive Voice has a large enough audience so Google incorporates new posts into its search database very quickly.

And sunlight Autharium will receive. Instead of simply acknowledging that it had screwed up in the past, Autharium is trying to bury it. It changed its T&C for the better, but is now undoing any forward momentum by attempting to erase the past. This will only result in another round of negative press, and a company that used to look exploitative will now become a company that is currently censorious.

Companies can, and do, change their TOS all the time. This makes the more paranoid side of me think that now that things have quieted down, they want to quietly return the TOS to what is was before they were forced to do the right thing. It's the best way to repeat history ... making sure people forget it.

Hanson's razor

I take this story with a slightly larger grain of salt than I usually would. It could very well be that this site just didn't want to get sued so it claimed every right it may ever need, sort of like the terms that come up in contracts when you're going to be filmedas an extra or something "you waive all rights to your image for use in this work in perpetuity, in this universe or others, in any extant dimension now known or yet to be discovered...etc etc" By way of example, look at all the insanity a year or so ago when facebook changed it's ToS and everyone thought it was trying to steal all your pictures and put them in ads or something.

The fact that they changed their ToS so quickly makes it sound to me like they weren't really trying to steal copyrights forever, more like they hired a lawyer to make sure their ass was covered, and the weasel suggested going way overboard.

Re: Hanson's razor

"The fact that they changed their ToS so quickly makes it sound to me like they weren't really trying to steal copyrights forever, more like they hired a lawyer to make sure their ass was covered, and the weasel suggested going way overboard."

That could be, but it still puts them in a terrible light. Did they not review the terms before putting them up? Seems unlikely.

In any case, whatever benefit of the doubt they may have had evaporated the moment they started abusing the DMCA.

Re: Bit weird

No Such Thing as a Bogus Takedown

Most of the cases I deal with are about incorrect information, defamation, libel and slander. There is no such thing as a Bogus Takedown under DMCA. Google are very strict. Google only remove links under the DMCA after they have validated a claim.

The list goes on, and on, and on, if you'd care to wade through all the DMCA related articles on the site. Needless to say, bogus DMCA claims are filed all the time, and they are not rare occurrences by any means.

Re: No Such Thing as a Bogus Takedown

"There is no such thing as a Bogus Takedown under DMCA. Google are very strict. Google only remove links under the DMCA after they have validated a claim."

You are either willfully being intellectually dishonest about the well-documented history in this area, or just woefully ignorant of the facts. In either case, you should stop taking people's money to handle lawsuits in the IP field until you study up, or just toss your law diploma in the nearest shredder and find work delivering pizza.

A simple search for "bogus DMCA" will return pages and pages of proof refuting your position...

Re: No Such Thing as a Bogus Takedown

your comment reeks of Pedantic claptrap & Bullshit!

and I gather now that VC stands for Virtually Clueless, interestingly it seems anyone else with even a laypersons legal knowledge of legal knowledge about copyright, how Google operates in regards to notices also understand this too..

Also lawyer? and you have typed slander, libel AND defamation in the same sentence? *facepalm*

Re: blank-check TOS

Fairly sure such terms don't work like that - that is, a company can't change the terms on someone willy-nilly.

I'm thinking of that... was it a jewelry seller? Suing over negative reviews.

Any changes are also limited by a court's interpretation of "reasonable". For example, declaring six months after signing a two-year cellphone contract (with really nasty penalties for breaking it) that the monthly price has increased by an order of magnitude is not kosher.

Which is why generally contract changes only take effect on 'turnover' (ie, a renewal for the old contract isn't offered, only the new one). Companies tend to put "free to change at any time" in terms and conditions, but it actually standing up in court if they try to enforce the 'new' terms (unless, of course, the user has been prompted to agree to the new contract and has done so) is uncertain.

Re: Re: blank-check TOS

Which is why generally contract changes only take effect on 'turnover' (ie, a renewal for the old contract isn't offered, only the new one). Companies tend to put "free to change at any time" in terms and conditions, but it actually standing up in court if they try to enforce the 'new' terms (unless, of course, the user has been prompted to agree to the new contract and has done so) is uncertain.

Haven't you ever received a mailing from your ISP or phone company or some other company with a new TOS written in very small print? If you actually take the time to read those things (which nobody really does) they almost always have a clause that says "By continuing to use our service you are agreeing to these new terms".

The only way to not to agree to the terms is by cancelling the service. That's how a company can change terms on someone willy-nilly. And it usually works too.